Sharp v. County of Putnam, New York

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ERIC SHARP,

Plaintiff, No. 18-CV-780 (KMK)

v. OPINION & ORDER

COUNTY OF PUTNAM, et al.,

Defendants.

Appearances:

Eric Sharp, Esq.

White Plains, NY

Pro Se Plaintiff

Lewis R. Silverman, Esq.

Silverman & Associates

White Plains, NY

Counsel for Defendants County of Putnam and Putnam County District Attorney’s Office

Robert J. Pariser, Esq.

Kevin D. Clinton, Esq.

Michael I. Goldman, Esq.

Lydecker Diaz

Melville, NY

Counsel for Defendants Town of Carmel, Town of Carmel Police Department, and Michael T.

Nagle

Maurizio Savoiardo, III, Esq.

Michael A. Miranda, Esq.

Richad B. Epstein, Esq.

Miranda Slone Sklarin Verveniotis LLP

Mineola, NY

Counsel for Defendants Adam Levy, Andre Gil, Heather Abissi, Lourdes Gonzalez, and Henry

Lopez

KENNETH M. KARAS, District Judge:

Eric Sharp (“Plaintiff”) brings this pro se Action, pursuant to 42 U.S.C. § 1983, against

Putnam County, the Putnam County District Attorney’s Office (“PCDAO”), the Town of Carmel

(“Carmel”), the Town of Carmel Police Department (“CPD”), CPD Detective Sergeant Michael

T. Nagle (“Nagle”), former Putnam County District Attorney (“DA”) Adam Levy (“Levy”),

Putnam County Assistant DAs Andre Gil (“Gil”) and Heather Abissi (“Abissi”), and Putnam

County DA’s Office Investigators Lourdes Gonzalez (“Gonzalez”) and Henry Lopez (“Lopez”)

(collectively “Defendants”), alleging claims of malicious prosecution and denial of due process.

(Am. Compl. ¶¶ 109–25 (Dkt. No. 20).)

Before the Court are three Motions To Dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6). The first is filed on behalf of Putnam County and the PCDAO (the “Putnam

County Defendants”). (Not. of Mot. (Dkt. No. 32).) The second is filed on behalf of Levy, Gil,

Abissi, Gonzalez, and Lopez (the “Putnam County Individual Defendants”). (Not. of Mot. (Dkt.

No. 37).) The third is filed on behalf of Carmel, the CPD, and Nagle (the “Carmel Defendants”).

(Not. of Mot. (Dkt. No. 46).) For the reasons that follow, the Motions are granted.

I. Background

A. Factual History

The Court previously detailed many of the facts of this case in an Opinion & Order issued

in a related case, Galgano v. County of Putnam, No. 16-CV-3572, 2018 WL 4757968, at *2–15

(S.D.N.Y. Sept. 28, 2018), vacated in part on reconsideration, 2019 WL 2235891 (S.D.N.Y.

May 16, 2019). The Court recounts only those facts necessary for consideration of the instant

Motions.

Plaintiff is a civil and criminal defense attorney based in Westchester County, New York.

(Am. Compl. ¶ 32.) As of 2013, Plaintiff was employed by George Galgano (“Galgano”) as a

senior associate at his law firm, Galgano & Associates. (Id.) In 2013, Galgano and Plaintiff

served as counsel to Lani Zaimi (“Zaimi”), who was criminally charged in Putnam County, New

York with sexual assault. (Id. ¶ 19.) Levy, as Putnam County District Attorney, led the

prosecution, and Gil participated in the prosecution. (Id. ¶¶ 19, 22.) In February 2014, Zaimi

was arrested on a separate sexual assault charge. (Id. ¶ 21.) A week later, Zaimi’s trial began in

the first case, which ended in a mistrial in March 2014 after the jury was unable to reach a

verdict. (Id. ¶¶ 22–23.)

On April 30, 2014, Levy and Gonzalez, allegedly seeking to retaliate against Galgano and

Plaintiff “for the manner in which the [first] matter was handled,” began investigating whether

Galgano and Plaintiff had conspired with others to tamper with a witness. (Id. ¶¶ 29–32.)

Defendants conducted controlled calls, placed court-authorized pen registers and trap and trace

devices on suspected conspirators’ phones, and executed court-authorized searches of suspected

conspirators’ business. (Id. ¶¶ 29–83.) Plaintiff alleges that, throughout the investigation,

Defendants engaged in misconduct and, in particular, made multiple false and fraudulent

assertions in applications to the court. (Id.)

On August 20, 2014, Plaintiff was indicted on charges of criminal purchase or disposal of

a weapon, perjury, and conspiracy to bribe a witness. (Id. ¶¶ 85–86.) Plaintiff thereafter

surrendered to authorities and was later released on bond. (Id. ¶ 86.) On January 26, 2015, the

indictment against Plaintiff was dismissed by a Decision & Order of the Supreme Court of the

State of New York, County of Putnam. (Id. ¶ 87.) The court stated:

A review of the [Grand Jury] minutes reveals that the evidence presented, viewed

in the light most favorable to the People, does not establish every element of the

offenses with which . . . Sharp is charged. Moreover, the cumulative effect of

numerous evidentiary and other errors which occurred during the Grand Jury

presentment also compels the court to dismiss the indictment. The People are,

however, granted leave to represent to a new Grand Jury.

(See Decl. of Lewis R. Silverman, Esq. in Supp. of Mot. (“Silverman Decl.”) Ex. B (“Sharp State

Ct. Op.”), at 8–9 (Dkt. No. 33).)1 As to the conspiracy counts, the court concluded that “there

[was] simply no evidence whatsoever of [Plaintiff] entering into an agreement to commit the

underlying substantive charges alleged” and that there was “an almost complete lack of

corroborating evidence.” (Id. at 9, 12.) As to the criminal purchase or disposal of a weapon

count, the court concluded that the evidence to establish operability of the weapon — an element

of the charge — was insufficient. (Id. at 13.) As to the perjury counts, the court concluded that

“there [was] no evidence that [Plaintiff] swore to the truth of the contents of [a particular

government form], that he falsely indicated that he was the actual purchaser of the shotgun[,] [or]

that he intended to mislead a public servant.” (Id. at 16.) Further, the court concluded that

multiple evidentiary errors were committed during the grant jury presentation. (Id. at 16–22.)

The Court therefore “ORDERED, that the instant Indictment is dismissed, with leave to the

People to re-present to another Grand Jury.” (Id. at 45.)

Defendants did not seek a second indictment against Plaintiff. (Am. Compl. ¶ 92.)

B. Procedural History

Plaintiff filed his initial Complaint on January 29, 2018. (Dkt. No. 1.) On May 18, 2018,

Plaintiff requested leave to correct deficiencies in the initial Complaint, (Dkt. No. 18), which the

Court granted, (Dkt. No. 19). Plaintiff filed the instant Amended Complaint on June 25, 2018.

(Am. Compl. (Dkt. No. 20).) On July 13 and 16, 2018, Defendants filed letters seeking a pre-

motion conference in anticipation of moving to dismiss. (Dkt. Nos. 21–23.) Plaintiff filed

responsive letters on July 23, 2018. (Dkt. Nos. 24–26.) On July 25, 2018, the Court adopted a

briefing schedule for Defendants’ Motions. (Dkt. No. 27.)

1 The Decision & Order may also be found at People v. Sharp, No. 14-CR-43, 2015 WL

4477670 (N.Y. Co. Ct. Jan. 26, 2015).

County Defendants’ Motion To Dismiss and accompanying papers were filed on

September 7, 2018. (Not. of Mot.; Silverman Decl.; Mem. of Law in Supp. of Mot. (“County

Defs.’ Mem.”) (Dkt. No. 34).) The Individual Putnam County Defendants’ Motion To Dismiss

and accompanying papers were filed the same day. (Not. of Mot.; Decl. of Maurizio Savoiardo,

Esq. in Supp. of Mot. (“Savoiardo Decl.”) (Dkt. No. 38); Mem. of Law in Supp. of Mot. (“Indiv.

County Defs.’ Mem.”) (Dkt. No. 39).) Carmel Defendants’ Motion To Dismiss and

accompanying papers were filed on September 19, 2018. (Not. of Mot.; Mem. of Law in Supp.

of Mot. (“Carmel Defs.’ Mem.”) (Dkt. No. 51); Decl. of Robert J. Pariser, Esq. in Supp. of Mot.

(“Pariser Decl.”) (Dkt. No. 52).)

On October 9, 2018, Plaintiff filed an opposition to Defendants’ Motions. (Decl. of Eric

Sharp, Esq. in Opp’n to Mots. (“Pl.’s Decl.”) (Dkt. No. 54); Mem. of Law in Opp’n to Mots.

(“Pl.’s Mem.”) (Dkt. No. 55).)

On October 26, Putnam County Defendants filed a reply, (Reply Mem. of Law in Supp.

of Mot. (“County Defs.’ Reply”) (Dkt. No. 57)), as did Carmel Defendants, (Reply Mem. of Law

in Supp. of Mot. (“Carmel Defs.’ Reply”) (Dkt. No. 56)). On October 29, 2018, Individual

County Defendants filed a reply. (Reply Mem. of Law in Supp. of Mot. (“Indiv. County Defs.’

Reply”) (Dkt. No. 59).)

II. Discussion

Plaintiff brings two causes of action pursuant to 42 U.S.C. § 1983. First, Plaintiff alleges

malicious prosecution in that Defendants “initiated . . . criminal proceedings against [him] . . . by

fraudulently obtaining court orders authorizing the search of [his] offices, and permitting the

seizure of evidence,” knowing that they lacked probable cause, and that they engaged in

“fabrication of evidence” and other “egregious deviations from acceptable investigative

activity.” (Am. Compl. ¶¶ 109–16.) Second, Plaintiff alleges denial of due process in that

Defendants “created false information and fabricated evidence likely to influence the outcome of

the proceedings against [him], including . . . the false statements and testimony of . . . witnesses.”

(Id. ¶¶ 117–25.)

All Defendants seek dismissal of the Amended Complaint in its entirety on grounds that

Plaintiff’s claims are time-barred. (See County Defs.’ Mem. 7–8; Indiv. County Defs.’ Mem.

10–11; Carmel County Defs.’ 9–11.)2

A. Standard of Review

The Supreme Court has held that, while a complaint “does not need detailed factual

allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citations, quotation marks, and alterations omitted). Indeed, Rule 8 of the Federal Rules of Civil

Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked

assertions devoid of further factual enhancement.” Id. (quotation marks and alteration omitted).

Rather, a complaint’s “[f]actual allegations must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated

2 In addition, Carmel Defendants argue that the CPD is not a suable entity, that Nagle is

protected by qualified immunity, that Plaintiff fails to state a Monell claim, and that Plaintiff fails

to state a malicious prosecution or denial of due process claim. (Carmel Defs.’ Mem. 8.)

Putnam County Defendants similarly argue that the PCDAO is not a suable entity, that Plaintiff

fails to state a Monell claim, and that Plaintiff fails to state a malicious prosecution or denial of

due process claim. (County Defs.’ Mem. 1.) Individual County Defendants argue that Plaintiff

fails to state a claim, that they are entitled to prosecutorial immunity, and that they are entitled to

qualified immunity. (Indiv. County Defs.’ Mem. 1–2.) Because Plaintiff’s claims are clearly

time-barred, the Court need not reach these arguments.

adequately, it may be supported by showing any set of facts consistent with the allegations in the

complaint,” id. at 563, and a plaintiff need allege “only enough facts to state a claim to relief that

is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claim[] across the

line from conceivable to plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556

U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will . . . be a

context-specific task that requires the reviewing court to draw on its judicial experience and

common sense. But where the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’ — ‘that the

pleader is entitled to relief.’” (citation omitted) (second alteration in original) (quoting Fed. R.

Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the

hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery

for a plaintiff armed with nothing more than conclusions.”).

In considering a motion to dismiss, the Court “must accept as true all of the factual

allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per

curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“In addressing the sufficiency

of a complaint we accept as true all factual allegations . . . .” (quotation marks omitted)).

Further, “[f]or the purpose of resolving [a] motion to dismiss, the Court . . . draw[s] all

reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot. Res., Inc., 992 F. Supp. 2d

302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir.

2012)).

The Court is ordinarily obliged to construe pro se pleadings liberally, Harris v. Mills, 572

F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the strongest claims they suggest, Sykes v.

Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam). Because Plaintiff is an attorney,

however, he is not entitled to the special solicitude usually granted to pro se litigants. See Tracy

v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010); see also Zappin v. Doyle, No. 17-CV-8837, 2018

WL 2376502, at *6 (S.D.N.Y. Apr. 10, 2018) (declining to treat attorney proceeding pro se with

special solicitude because he was an experienced litigator, had access to the court’s electronic

filing system, and had previously represented himself in multiple cases).

B. Analysis

1. Applicable Law

“The statute of limitations for claims brought under 42 U.S.C. § 1983 is generally the

statute of limitations for the analogous claim under the law of the state where the cause of action

accrued.” McDonough v. Smith, 898 F.3d 259, 265 (2d Cir. 2018) (citation and quotation marks

omitted). Here, New York’s three-year statute of limitations for personal injury actions applies.

Id. (citing, inter alia, N.Y. C.P.L.R. § 214(5)). However, while the length of limitations period is

determined by reference to state law, “the time at which a claim . . . accrues is a question of

federal law.” Spak v. Phillips, 857 F.3d 458, 462 (2d Cir. 2017) (quoting Wallace v. Kato, 549

U.S. 384, 388 (2007) (quotation marks omitted)).

2. Malicious Prosecution Claim

For malicious prosecution claims under § 1983, the statute of limitations begins to run

when the prosecution “terminate[s] in the plaintiff’s favor.” Poventud v. City of New York, 750

F.3d 121, 130 (2d Cir. 2014) (en banc) (quoting Heck v. Humphrey, 512 U.S. 477, 489–90

(1994)). A “favorable termination” occurs when the prosecution against the plaintiff has

“conclusively” ended. Murphy v. Lynn, 53 F.3d 547, 548 (2d Cir. 1995) (citations omitted).

Here, the indictment against Plaintiff was dismissed on January 26, 2015. (Sharp State

Ct. Op. 46 (noting date).) Plaintiff therefore had until January 26, 2018 to file suit. Because

Plaintiff did not file suit until January 29, 2018, (Compl. 17 (noting date)), his malicious

prosecution claim is untimely.

Plaintiff raises two arguments in response. First, Plaintiff argues that the date of the

decision is “not dispositive as to accrual” and that, instead, January 28, 2015 is the relevant date,

as that was the date Plaintiff “received [the] decision . . . dismissing the indictment.” (Pl.’s

Mem. 4–5.) The upshot of this argument is that, because January 28, 2018 — three years after

Plaintiff’s proffered accrual date — was a Sunday, Plaintiff’s filing of this action on Monday,

January 29, 2018 was timely. (See Letter of Eric Sharp, Esq. to Court (July 23, 2018), at 1 (Dkt.

No. 26).) This argument is meritless. As an initial matter, Plaintiff cites to no case, and the

Court has found none, holding that the date of notification is at all relevant to the question of

accrual. To the contrary, it is the decisional date — the date the prosecution is terminated — that

is relevant. See Neal v. Wilson, 239 F. Supp. 3d 755, 759 (S.D.N.Y. 2017) (using the date the

“charges . . . were dismissed” as the relevant date for accrual purposes); Smith v. City of New

York, 1 F. Supp. 3d 114, 119 (S.D.N.Y. 2013) (same); Mione v. McGrath, 435 F. Supp. 2d 266,

269–70 (S.D.N.Y. 2006) (same).

Second, Plaintiff argues that, notwithstanding the date of the court’s opinion dismissing

the indictment, the court “granted” the government “leave to re-present to a new Grand Jury,”

(Sharp State Ct. Op. 9, 45), and thus the prosecution against him did not “conclusively”

terminate in his favor until February 1, 2016, (Pl.’s Mem. 5), when the “action was dismissed

and all pending criminal charges related to this action were also dismissed,” (Pl.’s Decl. Ex. D

(certificate of disposition of dismissal) (Feb. 8, 2016)).

The Court is sympathetic to this argument, for it may well be that, as of January 26, 2015,

Plaintiff did not feel as if his case had conclusively terminated. Yet, Plaintiff cites to no case

indicating that, for purposes of the question of accrual, charges must be dismissed with prejudice

for a prosecution to be conclusively terminated. To the contrary, the Second Circuit recently

held that the entry of a nolle prosequi — the effect of which “is to terminate a particular

prosecution against the defendant” but allows “the prosecutor [to] choose to initiate a second

prosecution at any time before the limitations period expires” — constitutes a conclusive

termination for claim accrual purposes. Spak, 857 F.3d at 463–64. In Spak, the Second Circuit

acknowledged “that, strictly speaking, a nolle prosequi only terminates a specific prosecution by

vacating a charging instrument” and “does not prevent a prosecutor from re-charging the same

defendant for the same criminal conduct at some point in the future.” Id. at 464. It noted,

however, that, “[u]nder the common law . . . , a termination of the existing prosecution is

sufficient for a malicious prosecution claim to accrue.” Id. Put differently, “[s]o long as a

particular prosecution has been ‘conclusively’ terminated in favor of the accused, such that the

underlying indictment or criminal information has been vacated and cannot be revived, then the

plaintiff has a justiciable claim for malicious prosecution,” because “[a]t that point, all of the

issues relevant to the claim . . . are ripe for adjudication.” Id.

There is no meaningful distinction between this case and Spak. The state court’s January

26, 2015 Decision & Order, which dismissed the indictment against Plaintiff in its entirety, (see

Sharp State Ct. Op. 45), “terminate[d] a specific prosecution by vacating [the] charging

instrument,” Spak, 857 F.3d at 464. Once the indictment was dismissed, Plaintiff’s malicious

prosecution claim was “ripe for adjudication,” notwithstanding the fact that the prosecution

could have chosen to prosecute Plaintiff “for the same criminal conduct” by re-presenting the

case to a grand jury and obtaining a separate charging instrument. Id. On this point, the case of

Rueda v. Kreth, No. 01-CV-2819, 2005 WL 323711 (E.D.N.Y. Feb. 7, 2005), is instructive.

There, the plaintiff was arrested on drug-related crimes, but “the criminal charges . . . were

[thereafter] dismissed upon the grand jury’s vote of no true bill.” Id. at *1. The plaintiff brought

an action under § 1983 alleging malicious prosecution. Id. The court, in considering the

question of accrual, concluded that “the criminal proceedings against [the plaintiff] were

terminated . . . when the grand jury voted no true bill.” Id. at *4. That was so notwithstanding

that, as the court noted, “a no true bill from the grand jury might grant the target of the

prosecution only temporary relief,” for “[t]he government can usually choose to empanel another

grand jury.” Id. at 1 n.5 (quotation marks alterations omitted) (quoting In re Grand Jury

Proceedings, 219 F.3d 175, 189 (2d Cir. 2000)). Here, similarly, the criminal proceedings

against Plaintiff were terminated when the court dismissed the indictment, notwithstanding the

possibility that the prosecution might thereafter empanel a second grand jury and seek a separate

indictment against Plaintiff.

In sum, Plaintiff’s malicious prosecution claim began accruing on January 26, 2015,

when the court dismissed the indictment in its entirety, and expired three years later, on January

26, 2018.3 Because Plaintiff did not bring suit until January 29, 2018, (see Compl. 17), his

3 The Court notes that, assuming Plaintiff’s malicious claim is timely, he would be

required to establish the elements of that claim, which “are governed by state law.” Spak, 857

F.3d at 461. “To establish a malicious prosecution claim under New York law, a plaintiff must

prove (1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination

of the proceeding in plaintiff’s favor; (3) lack of probable cause for commencing the proceeding;

and (4) actual malice as a motivation for defendant’s actions.” Manganiello v. City of New York,

612 F.3d 149, 161 (2d Cir. 2010) (citations and quotation marks omitted). Dismissal with leave

to re-present may not, under New York law, qualify as a “termination of the proceeding”

required to establish the second element of a malicious prosecution claim. See Smith-Hunter v.

Harvey, 734 N.E.2d 750, 754 (N.Y. 2000) (holding, in merits analysis, that “dismissal without

prejudice qualifies as a final, favorable termination if the dismissal represents the formal

abandonment of the proceedings by the public prosecutor” (emphasis added) (citation and

quotation marks omitted)); see also Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995) (holding, in

merits analysis, that dismissal of an indictment with leave to re-present to a grand jury is not “a

malicious prosecution claim is time-barred.4

3. Denial of Due Process Claim

Plaintiff’s denial of due process claim is based, at least in part, on the fabrication of

evidence. (Am. Compl. ¶¶ 117–25 (arguing that defendants “created false information and

fabricated evidence likely to influence the outcome of the proceedings against [him], including

. . . the false statements and testimony of . . . witnesses”).) A denial of due process claim based

on fabrication of evidence “accrues (1) when a plaintiff learns of the fabrication and it is used

against him, and (2) his liberty has been deprived in some way.” McDonough, 898 F.3d at 266

(citations omitted). Under the first prong, the statute of limitations begins to run when the

plaintiff “has a complete and present cause of action, that is, when the plaintiff can file suit and

obtain relief,” Smith v. Campbell, 782 F.3d 93, 100 (2d Cir. 2015) (citation and quotation marks

omitted), which is when “the plaintiff knows or has reason to know of the injury which is the

basis of his action,” Veal v. Geraci, 23 F.3d 722, 724 (2d Cir. 1994) (citation and quotation

final disposition” because “reinstitution of [the] prosecution was expressly provided by the

court” (citing Heaney v. Purdy, 272 N.E.2d 550, 553 (N.Y. 1971)).

Smith-Hunter and Russell are, however, merits analyses and thus not relevant to the

question of accrual, for, as previously noted, “the time at which a claim for malicious

prosecution . . . accrues is a question of federal law that is not resolved by reference to state

law,” and “[f]ederal courts apply general common-law tort principles to determine the accrual

date.” Spak, 857 F.3d at 462 (citations, quotation marks, and alterations omitted). Put

differently, “[w]hile the same phrase — ‘favorable termination’ — is used in both the accrual

analysis and the merits analysis . . . , it is analyzed under a different legal standard in each

context. . . . What constitutes a ‘favorable termination’ may turn out to be the same in each

context, but not necessarily so.” Id. at 462–63.

4 Although application of this rule works to Plaintiff’s disadvantage here, the purpose of

the rule works to the benefit of plaintiffs broadly, for it permits the accused “to seek recovery . . .

as soon as the charges are vacated” and does not require a prospective action “be delayed merely

because the state remains free to bring a similar prosecution in the future.” Spak, 857 F.3d at

466. Were the rule otherwise, “[t]his would encourage the filing of stale claims and ill-serve the

purposes of speedy relief for those who have been wrongfully subject to prosecution.” Spak v.

Phillips, 138 F. Supp. 3d 159, 164 (D. Conn. 2015), aff’d, 857 F.3d 458 (2d Cir. 2017).

marks omitted). “The reference to knowledge of the injury does not suggest that the statute does

not begin to run until the claimant has received judicial verification that the defendants’ acts

were wrongful.” McDonough, 898 F.3d at 266 (citation, quotation marks, and alterations

omitted).

Here, Plaintiff was indicted on August 20, 2014. (See Am. Compl. ¶ 85.) Plaintiff

thereafter moved to dismiss the indictment on November 25, 2014. (Sharp State Ct. Op. 4.) In

so moving, Plaintiff argued, among other things, that the “warrant application contained

affirmative misrepresentations,” that the “warrant application did not establish probable cause,”

and that the “warrant was impermissibly overbroad.” (Id. at 2–3.) The court, in dismissing the

indictment, ultimately did not reach these arguments. (See id. at 39 (“Since the court is

constrained to dismiss the indictment for the reasons set forth above, it will not address [the]

motion to controvert the search warrants.”). Nevertheless, because the indictment against

Plaintiff was dismissed on January 26, 2015, (see id. at 46), Plaintiff knew by November 24,

2014 — or, at the latest, by January 26, 2015 — of his denial of due process claim. See Ying Li

v. City of New York, 246 F. Supp. 3d 578, 617 (E.D.N.Y. 2017) (holding that the plaintiff knew

of due process claim on date prior case was dismissed).5 Plaintiff therefore had until November

5 Indeed, Defendants argue that Plaintiff knew of his denial of due process claim as early

as September 30, 2014, when he filed a Notice of Claim, pursuant to N.Y. Gen. Mun. Law

§ 50-e, against Putnam County, the PCDAO, Carmel, and CPD, alleging “illegal search and

seizure and other statutory and common law claims” on grounds that those entities “wrongfully

obtain[ed] a search warrant . . . in bad faith, and without probable cause.” (See Silverman Decl.

Ex. C (Notice of Claim); Savoiardo Decl. Ex. M (same).)

Further, there is a colorable argument that Plaintiff knew of his denial of due process

claim as early as August 20, 2014, the date of his indictment. See McDonough, 898 F.3d at 267

(holding that denial of due process claim began accruing “at the earliest, when [the plaintiff] was

indicted and arrested and, at the latest, by the end of his first trial, after all of the prosecution’s

evidence had been presented”); Blount v. Moccia, No. 16-CV-4505, 2017 WL 5634680, at *12

(S.D.N.Y. Nov. 21, 2017) (dismissing fair trial claim as time-barred where the action was filed

more than three years after the plaintiff was indicted).

24, 2017 (or, at the latest, until January 26, 2018) to file suit. Because Plaintiff did not file suit

until January 29, 2018, (see Compl. 17), his denial of due process claim is time-barred.®

IIL. Conclusion

For the foregoing reasons, Defendants’ Motions To Dismiss are granted. The Amended

Complaint is dismissed in its entirety. Dismissal is with prejudice. See Vasquez y. Lazar, No.

15-CV-8845, 2019 WL 1988576, at *8 (S.D.N.Y. May 6, 2019) (dismissing claims with

prejudice where barred by the statute of limitations) (citation omitted).

The Clerk of the Court is respectfully requested to terminate the pending Motions, (Dkt.

Nos. 32, 37, 46), to mail a copy of this Opinion to Plaintiff, and to close this case.

SO ORDERED.

DATED: May 24 , 2019

White Plains, New York Ai. ys:

PATE.

KENNETH M. KARWS,35

UNITED STATES DISTRICT JUDGE

° Plaintiff does not appear to argue otherwise. (See Pl.’s Mem, 4~5 (arguing only that his

malicious prosecution claim is timely); Carmel Defs.’ Reply 2 (noting that Plaintiff “entirely

fails to address the timeliness of his second cause of action for... denial of due process”).)

14